BILL ANALYSIS Ó
AB 1315
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Date of Hearing: May 20, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
1315 (Alejo) - As Amended April 21, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY:
This bill prohibits public agencies from delegating to a
contractor the development of a storm water pollution prevention
plan (SWPPP), water pollution control program, or any other plan
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required by a Regional Board to prevent or reduce water
pollution or runoff on a public works project. This bill also
prohibits public agencies from requiring a contractor, on a
public works contract that includes compliance with any of these
plans, to assume responsibility for the completeness and
accuracy of the plan developed by that entity.
FISCAL EFFECT:
Unknown, but likely major, on-going reimbursable state mandated
costs for local agencies to develop SWPPPs.
COMMENTS:
1)Purpose. According to the author, "Although the Permit
allocates SWPPP design responsibility to project owners -
including the corresponding risk of penalties for design
defects - many owners attempt to transfer design
responsibility/risk to their contractors. This is done
through broad contractual indemnity provisions and design-risk
shifting requirements... As a result, contractors are forced
to hire a design firm to design the SWPPP/act as [qualified
SWPPP developer] QSD, and often attempt to transfer the risk
of penalties down to their subcontractors through similarly
broad subcontract indemnity provisions?This shift in
responsibility undermines the intent of the Permit, results in
an inefficient allocation of responsibility and risk; and is
contrary to several existing laws."
2)Background. A SWPPP is a comprehensive, detailed,
site-specific, written document that identifies potential
sources of stormwater pollution on a construction site;
describes stormwater control measures and Best Management
Practices (BMPs) that will be used to reduce or eliminate
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pollutants in stormwater discharges from the project site; and
identifies the procedures the operator of the project site
will implement to comply with the terms and conditions of the
Permit.
In order for a construction site to remain in compliance with
the Clean Water Act's NPDES permitting program, a SWPPP must
be developed and maintained throughout the construction
project's entirety. As the project progresses and goes
through changes, the SWPPP must be revised to reflect those
changes. A project's SWPPP may be furnished by the project
owner or prepared by a contractor's SWPPP developer. The
Permit is typically held in the name of the property owner.
3)State Water Board. According to staff at the State Water
Board, the practice of delegating development of an SWPPP to
the contractor is neither new nor unusual. This is frequently
the practice they see in construction projects that must
obtain a Permit and develop an SWPPP. They note that the
discharger, or the responsible party for the Permit, is named
on the Permit and is always the owner/agency, not the
contractor. Thus, responsibility for compliance with the
Permit remains with the owner/agency, regardless of which
party develops the SWPPP.
Water Board staff also asserts that most municipalities don't
have the expertise to develop SWPPPs and don't have the
resources to retain QSDs on staff. QSDs are typically
employed by environmental consulting firms that perform the
work of developing SWPPPs under contract, either with a
contractor (which is more common), or with the owner/agency.
(Some large contracting firms keep QSDs on staff, but many
smaller firms don't have the resources to do so.)
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4)Arguments in Support. Supporters, primarily contractors and
industry organizations, write, "AB 1315 clarifies that public
owners are responsible for the preparation of Storm water
Pollution Prevention Plans (SWPPP) required on public works
projects and prohibits public owners from delegating
responsibility to contractors or forcing contractors to assume
responsibility for SWPPP design.
"Local agencies have begun requiring contractors to prepare
the state required storm water plan and submit it as part of
the bid. At this point the contractor or subcontractor cannot
price the storm water plan because it hasn't been designed yet
- so the result is the contractor or subcontractor is forced
to estimate the cost of implementing a storm water plan - and
include that cost into a bid - even before the plan has been
designed."
5)Arguments in Opposition. Opponents, primarily cities,
counties, and other local agencies, state, "SWPPPs are
currently created in accordance with the general contractor's
construction plans. As construction progresses, SWPPPs must
often be modified to accommodate the constantly changing
conditions of a construction site. The general contractor is
in the best position to create the construction plan and
contract for the corresponding SWPPP. A general
contractor-developed SWPPP can incorporate an optimal
construction sequence selected by the contractor, thereby
maximizing efficiency and reducing costs. A separate entity
developing a SWPPP would have to assume a sequence of work
that might occur under one construction scenario but not
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another.
"AB 1315 would turn this standing process on its head by
prohibiting public agencies from contracting with the general
contractor to develop a SWPPP and statutorily restricting
their remaining options to an engineer or architect. Public
agencies, engineers and architects simply do not have the
direct control over the day-to-day construction, let alone the
expertise, to perform this function."
Analysis Prepared by:Jennifer Swenson / APPR. / (916)
319-2081